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A critical examination of R v Collins and the pregnant woman's right to refuse treatment

Abstract

In this thesis I aim to provide a balanced, unbiased analysis of the materno-fetal conflict as expressed by the caesarean section scenario. A second aim is to examine the legal balance of the woman's rights against the fetus' and to determine whether the law could be altered to increase its protection of the fetus without unacceptably infringing the woman's rights. In R v Collins, the Court of Appeal has strongly affirmed the right of the competent pregnant woman to refuse consent to medical treatment regardless of any detrimental effect either to herself or her fetus. Likewise, Re MB holds that the interests of the fetus have no bearing on the woman’s right to self-determination. However, despite its powerful affirmation of the primacy of autonomy I show that the Court of Appeal has left significant leeway for the concerned physician - or judge - to circumvent the woman's decision by finding her temporarily incompetent. The subjective nature of the current competence assessment tests and the use of temporary factors - such as pain, drugs and labour itself - allows backdoor paternalism. The failure of the courts to assess the public policy implications of the situation, and the obvious judicial sympathy for the fetus, suggest that the legal balance may be weighted too heavily in favour of the woman. However, analysis of statute law, common law and government publications suggests that society would not support the protection of the fetus at the expense of the woman. This is confirmed by European human rights law. Likewise, I argue that the moral value of the fetus is insufficient to allow it to trump the woman's rights. Finally, I argue that neither criminal nor tort liability are justified in trying to protect the fetus against the woman’s refusal of consent to treatment.